THIS HELPFUL DOCUMENT WAS CREATED ON BEHALF OF SAVE ARNOLD CANAL BY S.A.C. ATTORNEY BRIAN SHEETS OF BRS LEGAL, LLC
Property Owner (on the AID main canal) Bill of Rights FAQ’s
*Note: This document is not legal advice and is only intended to provide basic information about the status of the law. Every situation and piece of property is unique with its own special circumstances and parties involved and this document cannot substitute the advice of a licensed attorney to answer other specific questions. Please contact your attorney for advice pertaining to your unique situation.
Photo courtesty of Warleggen 2022.
Q: I’m aware of AIDs canal road easement though my property because they have maintained access to it, but I’m not aware of any broader easement. What AID easement(s) are well established?
A: AID has claimed a right of way for the canal and laterals associated with the canal. These rights of way (legally classified as an easement) allow for AID to use the property for irrigation water delivery, maintenance of the canal, and a few other uses including power generation and transportation. These rights of way were granted to the States and irrigation districts from the federal Canal Act of 1891 and its later amendments, and the Carey Act of 1894.
The Canal Act of 1891 and its amendments granted rights of way to canal and ditch companies “to the extent of the ground occupied by the water of the reservoir and of the canals and its laterals, fifty feet on each side of the margins thereof….”
In addition to these rights or way, AID may also have implied or prescriptive easements that arise from using the land of another without objection or interruption for ten years, and whose use is open, hostile, notorious, continuous, but not exclusive.
A right of way is an interest in land, and in order to satisfy the statute of frauds, the right of way must be a written document describing the dominant estate, the servient estate, its location, and the purposes of use. Usually, these interests are recorded in the county land records to provide notice to interested parties when performing their due diligence in researching any interests in lands they are considering acquiring. Detailed title reports can show these interests through researching the county land records for recordation of these interests in land.
Q: What does this easement give AID the right to do on my property?
A: First, AID has the right to use your property for the canal in delivering irrigation water and maintaining the canal. Additionally, the irrigation district may enter your property outside of the easement if you are a “water user of the district.” The rights of the Irrigation District to enter upon private property are described in ORS 545.237:
ORS 545.237 Right to enter upon lands for inspection and maintenance of water works. (1) The board of directors, its officers or an agent or employee of the board of directors may enter upon land of a water user of the district for inspection, maintenance and regulation of ditches, pipelines, gates, pumps or other water works. In the absence of an emergency, the district shall provide adequate and appropriate notice prior to entering upon the land of the water user.
(2) Any person exercising the right of entry granted under this section shall not cause unnecessary damage to the property of the water user. The landowner shall not be responsible to the person or the district for any injury or damage to the person or district arising out of or occurring by reason of the entry, except when the landowner intentionally causes injury or damage to the person or district.
(3) The right of entry granted by this section shall not constitute a right of entry by the public onto the premises of the landowner.
Q: Can AID staff walk onto my property from the easement road?
A: If the Irrigation District personnel have provided adequate and appropriate notice and are attending to the inspection, maintenance and regulation of ditches, pipelines, gates, pumps or other water works, then yes. If it is to do activities outside of these actions, and/or you are not a water user of the District, then no.
Q: When can I tell AID staff to get off of my property?
A: You can tell them to leave your property if they are not attending to the inspection, maintenance and regulation of ditches, pipelines, gates, pumps or other water works. This is the limitation to their entry of private property.
Q: AID has maintained its access road over the years by trimming/pruning vegetation but only as it related to its trucks and equipment driving along it…can they expand their “foot print” on my property in anticipation of an approval of their modernization plan?
A: AID has claimed an easement that lies fifty feet on either side of the canal under the various federal acts. And the use of the easement is for irrigation water delivery. Any activities related to irrigation water delivery must be contained within that fifty-foot limit on either side of the canal. They cannot expand past that range for any reason without entering into a voluntary agreement, purchasing additional access from a landowner, or condemning access through a court procedure. Within the described and validated easement, the district can perform irrigation water delivery activities including maintenance and construction projects for the canal. The degree to which there is interference with the dominant or servient estate on matters that are abnormal or an expansion of the burden of the easement are fact dependent and must be evaluated on a case-by-case basis.
Q: AID is relying on the Carey Act of 1894 to claim a right-of-way extending 50 feet to either side of the existing main canal but property owners find no documentation in their deed records to support such a claim. Can AID expand its existing easement to such a broad area? Can property owners do anything to counter this claim?
A: Property owners should have AID demonstrate their claim to the extent it will satisfy the statute of frauds and mapping requirements under the various acts, meaning that there should be a written document showing the easement’s location and the purposes of use. Moreover, it should also have details on the width of the canal at the time the easement was granted to ensure that any widening that may have taken place over time has not expanded the easement beyond the original grant.
Q: AID claims that many trees are within its alleged Carey Act right-of-way and will need to be cut down. AID also claims that many property owners have structures or utilities infrastructure that exist within this alleged right-of-way and will need to be torn down or moved. These trees and structures often have been on the property through many changes of ownership without any claim of easement encroachment by AID. What are a property owners rights in this situation?
A: Depending on the length of time that the objects have been within the claimed right of way, there may be an issue of waiver with the dominant estate allowing the objects to remain and the subsequent reliance upon the waiver. Other districts that have implemented encroachment permit programs have limited the scope of the programs to apply to encroachments only after the program has been initiated given concerns of ex-post facto regulations as well as equal protection concerns on the program’s enforcement.
When a court reviews encroachments to an easement, the court employs a balancing test to determine the amount of interference of the objects along with the costs associated with requiring the parties to remove or alter their activities. These are case-by-case situations and fact dependent and should be reviewed by legal counsel for the affected property.
Q: What sorts of activities/behaviors on AID’s part would be considered “trespassing” on private property by virtue of overstepping the boundary and scope of AID’s easement? What would a property owner’s legal recourse be in this situation? Call the City of Bend Police? Call the Deschutes County Sheriff?
A: Activities other than the inspection, maintenance and regulation of ditches, pipelines, gates, pumps or other water works could be considered trespassing. This is the limitation to their entry onto private property. Depending on the jurisdiction of the occurrence, trespassing should be reported to city police when within the city limits, and county sheriff when outside of the city limits. However, this is only for actions that are not described above. If district personnel are doing activity related to irrigation work, they may re-enter for that purpose with adequate and appropriate notice.
Q: If an AID staff member wishes to speak with a property owner, can he be required to approach via the driveway in his marked vehicle to knock on the door, rather than approach from the canal road easement? It seems that their canal road easement is for passing through to conduct checks or maintenance but it doesn’t offer any ingress point to the property?
A: District personnel can enter the property for inspection, maintenance and regulation of ditches, pipelines, gates, pumps or other water works. Approaching a residence from the maintenance road to speak with a resident may be outside of this description. Unless it is an emergency, the district must provide adequate and appropriate notice prior to entering upon the property.
Q: In terms of limitations on what sort of easement-allowed access and maintenance duties there may be—what restrictions are in place for hours in which AID staff can pass along their easement road, or noise/dust levels? What constraints can be applied to AID activities per other jurisdictional controls, like homeowners group covenants, city codes, etc…
A: The district is still bound by City and County noise ordinances. The City of Bend noise ordinance is found in City Code 5.50, and limits normal construction hours to occur between 7:00AM and 10:00PM and limits noise volumes depending on the local zoning. However, the City may issue permits that exempt activities from the noise ordinance, as detailed in City Code 5.50.035. The Deschutes County Code noise ordinance is found in County Code Chapter 8.08 and has similar restrictions and a similar permitting process. The district personnel can enter the maintenance road at any time if they are performing maintenance on the canal or to address an emergency. Dust issues may be nuisances and/or code violations subject to control by the community development departments of the jurisdiction. Covenants, conditions, and restrictions will not apply to AID, as they are not a party that has agreed to be bound by homeowners association rules in the same manner a homeowner agrees to the CC&Rs upon purchasing a home in a planned community.
Q: If approached by AID personnel for authorizations or agreements, what rights does a property owner have?
A: Most importantly, the property owner should carefully review any document for all terms in the agreement. They should also be afforded time to review the document and allow for the consultation of legal counsel or other persons that the property owner can consult for advice. Short deadlines should be avoided, and statements by district personnel should be written down shortly after making them, or should be witnessed by other parties. If personnel are asking for oral authorization for a particular act, it should be reduced to writing with both parties receiving copies so that there aren’t any miscommunications on intent or scope of the authorization.